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How Advancements in Neuroscience Will Influence the Law

Every day, legal decisions are made based on the pain, suffering, and anxiety people say they’re feeling, even though we have no objective way to measure them. So what if we could see inside people’s minds — not just to know what they’re feeling now, but what they’ve felt in the past too?

(iStockphoto)

Advancements in neuroscience are already improving our ability to do so. A new article published in the Emory Law Journal (full version here) entitled “The Experiential Future of the Law,” by Brooklyn Law School professor Adam Kolber, looks at how these advancements will continue over the next 30 years (to the point of near mind-reading), and how they’ll inevitably lead to changes in the law.

Kolber’s central claim:

My central claim is that as new technologies emerge to better reveal people’s experiences, the law ought to do more to take these experiences into account. In tort and criminal law, we often ignore or downplay the importance of subjective experience. This is no surprise. During the hundreds of years in which these bodies of law developed, we had very poor methods of making inferences about the experiences of others. As we get better at measuring experiences, however, I make the normative claim that we ought to change fundamental aspects of the law to take better account of people’s experiences.

And a few choice paragraphs:

In 2006, researchers used fMRI to help assess the mental activity of a woman believed to be in a persistent vegetative state. When the woman was scanned and asked to imagine engaging in certain actions like playing tennis or navigating rooms in her house, her brain activity looked remarkably similar to the activity in healthy control subjects who imagined engaging in the same activities. One researcher declared that the study provides “knock-down, drag-out” evidence of the patient’s conscious experiences.

Researchers are trying to develop more accurate methods of detecting deception using brain imaging. While many in the scientific community doubt that current brain-based methods of lie detection are sufficiently accurate and reliable to use in forensic contexts, that has stopped neither companies from marketing fMRI lie detection services to the public, nor litigants from trying to introduce such evidence in court.
Even if current lie detection technology is too inaccurate to rely on in court, we already have good reason to think about future uses of such technology. Given the substantial possibility that we will develop reasonably accurate lie detectors within the next thirty years, our current secretive behaviors have already become harder to hide. A person in the year 2011 who visits a strip club, cheats on his spouse, evades taxes, or murders someone can surely be asked thirty years later about his thoughts and conduct throughout the course of his life. The “look-back” potential of accurate lie detection reduces the probability that our current thoughts and behavior will remain secret in coming decades.

Alex

June 1, 2011 @ 8:39pm

I see two obvious reasons this will not come to pass any time soon. First, you would need to get a strong consensus in the neuroscience community that these technologies do what the law would claim they do with the high accuracy needed in court. The example of the woman in a vegetative state would not pass muster in a sample of scientists, I don't think, even if one finds it to be "knock-down, drag-out" evidence. This is why lie detectors aren't admissible and nothing has replaced them yet.

Second, even if the agreement does occur, it raises questions about the Fifth Amendment. Can you scan me to determine if I'm lying? Isn't that making me testify against myself?

David S.

June 2, 2011 @ 6:05pm

Alex,

To your second question, I believe you are correct that it would violate our rights in criminal cases. I don't think those same protections apply as generally in civil cases, though. I think you can be forced to testify under oath in some civil actions even if it may incriminate you.

I'm not a lawyer; that's just my understanding of the issue.

badu

June 2, 2011 @ 2:21pm

I agree, the interpretation of what these scans are telling us is the key issue here.

"her brain activity looked remarkably similar to the activity in healthy control subjects who imagined engaging in the same activities."

I'm no scientist, but one has to ask, how dissimilar would her brain activity have to be to be seen as unrelated?

sdf

June 3, 2011 @ 2:18am

Scary Shit

TD

June 4, 2011 @ 7:07pm

????you can trace the brain activity for the last 24 hours and if it matches the brain activity of a criminal it can lead to prosecution. to hellz w/it all